Worker's sick days cause scheduling headache for employer

You make the call

Worker's sick days cause scheduling headache for employer

This edition of You Make the Call involves a worker who was unable to work due to mental health issues and the scheduling problems it caused her employer.

The worker was hired in April 2018 to work at a gas station restaurant in Wyoming, Ont. for three to four shifts per week. Shortly after she started work, she informed the manager that she had a history of mental illness and substance abuse. The manager was supportive and helped her when she had episodes of anxiety at work.

Two months after the worker was hired, the manager left and was replaced. Around the same time, a friend of the worker died, which contributed to a worsening of her mental health issues. On June 13, the worker contacted the new manager to say she wasn’t able to work that day. She also called in sick the following day.

The new manager was angry that she would have to get someone else to cover the worker’s shift and the worker said she would get a doctor’s note for her absences.

A few days later, the worker went to the emergency department at the local hospital and obtained a doctor’s note excusing her from work for three days from June 13 to 15. The note didn’t say that the worker was unable to work due to mental health reasons, but the worker told the new manager about her disability and why she had been unable to work.

Later that day, the worker visited the withdrawal management services at the hospital, where she stayed overnight for treatment and counselling.

The next day, June 18, the worker texted the new manager and said she was able to return to work. However, the new manager told her that the restaurant had hired new staff to cover her absences and there were currently no hours available. Since the doctor’s note hadn’t indicated how long the worker would be off work or if she would even be able to return, the new manager and the owner felt hiring new staff was necessary so it wouldn’t have to deal with the uncertainty.

The worker said she was going to contact the owner of the restaurant and the Ontario Human Rights Tribunal and the new manager texted back “Good luck LOL.”

The manager then told the owner that the worker was “not a good fit for the business” and should be removed from the payroll. The restaurant had no further contact with the worker.

Although the worker believed she was capable of returning to work at the restaurant, she didn’t feel ready to start a new job. As a result, she didn’t look for work for two months. In September, she started attending college in another city and worked several jobs over the winter. She didn’t find a full-time job until May 2019.

The restaurant closed permanently in October 2018.

Did the restaurant discriminate against the worker?
Did it have legitimate reasons to dismiss and replace the worker?

If you said the restaurant discriminated against the worker, you’re right. The Ontario Human Rights Tribunal accepted that the worker’s mental health and substance abuse issues constituted a disability and she communicated this to both the original manager and the new manager. When the worker called in sick, it was related to that disability, said the tribunal.

The tribunal noted that the uncertainty around the worker’s return to work may have been difficult for the restaurant’s staffing plans, but it had a duty to accommodate the worker’s disability to the point of undue hardship before considering termination of employment. After only a few days, management decided the worker wasn’t a good fit but made no effort to figure out any accommodation options, the tribunal said.

“The only relevant interaction was between the [worker] and her manager… who, acting in the course of her employment as manager, was the person who decided to terminate the [worker’s] employment,” said the tribunal.

Although the worker claimed lost wages until she found full-time employment in May 2019, the tribunal found that it was unlikely she would have come back to work weekends once she moved away to attend college in September 2018. In addition, the restaurant closed in October 2018 so the worker’s employment would have ended then, the tribunal said.

The restaurant owner and his company were ordered to pay the worker the equivalent of 11 weeks’ wages — covering the period from when she was terminated to when she moved away for college, totalling $4,312 — plus $15,000 in compensation for injury to dignity, feelings and self-respect.

For more information, see:

  • Lambourn v. 2471506 Ontario Inc., 2020 HRTO 526 (Ont. Human Rights Trib.).

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